New Rapanos Guidance: Is It Guidance Or Is It Really Legislation?

Industry groups and environmentalists continue to do battle over EPA’s efforts to update its post-Rapanosguidance. Greenwire reports that 12 different groups have met with “the White House” in the past six weeks. As this process drags on, one cannot help but ask why this guidance is even being issued at all.

At an earlier point, I acknowledged that this might actually be an appropriate situation in which to use guidance, for one basic reason. The guidance is only temporary; EPA has already acknowledged the need to pursue rulemaking as the long-term solution.

That being said, however, I think that the theoretical benefits of guidance have run into the practical realities of the current political world. It seems as though EPA compared an idealized view of how quickly guidance can get done with a real-world estimate of how long it takes to write regulations. EPA started this process several years ago, presumably not imagining that we’d be sitting here in April 2012 and it still would not have obtained authority to issue the guidance. If EPA had started the regulatory process at the same time, we would probably be equally near to a conclusion, without the necessity to go through the same process twice. Next time, if something requires regulations, just do the regulations and be done with it.

For those interested in the substance of the guidance, the most significant remaining issue in dispute is apparently when small resources that are individually not navigable have sufficient cumulative nexus to navigable waters that EPA may subject them to regulation under the test enunciated by Justice Kennedy. Given the essentially standardless text in the statute itself, EPA probably has sufficient discretion on this issue to defend either a narrow or broad interpretation – that’s why the lobbying is so important – and that’s why it would have been better to handle this through the formal regulatory process from the get-go. If we’re going to be candid, EPA is pretty much writing the statute here, since Congress failed to do so. Shouldn't such an exercise be performed in the most formal way possible, with maximum procedural protection?

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